P. v. Kilgore

Filed 12/11/08 P. v. Kilgore CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

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Defendant Matthew Aaron Kilgore appeals from the revocation of his probation under Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (Pen. Code, 1210.1 (the Act); undesignated section references are to the Penal Code). Defendant contends that the trial court revoked his probation prematurely because the state moved only once to revoke probation and there was only one qualifying noticed hearing. Disagreeing with both contentions, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the probation report, a police officer in Oakdale (Stanislaus County) contacted defendant on September 11, 2006, concerning an outstanding arrest warrant. A search incident to arrest found seven-tenths of a gram of methamphetamine on defendants person.

On September 13, 2006, a complaint filed in Stanislaus County Superior Court charged defendant with one count of possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)) and two prior felony convictions ( 1203, subd. (e)(4)).

On September 18, 2006, after defendant pled guilty, the trial court suspended imposition of sentence and granted defendant three years of felony probation under the Act. The court advised defendant, who was represented by counsel, that if he failed to complete drug treatment or to substantially comply with the terms of probation, he could be returned for resentencing to jail or to state prison for a term of 16 months to three years. Defendant stated that he understood these conditions. Counsel stated that he had explained the consequences of defendants plea to him.

On September 29, 2006, the Stanislaus County Probation Department filed a petition alleging that defendant had failed to comply with four probation conditions: to report to the probation officer as directed, to complete substance abuse treatment, to register pursuant to Health and Safety Code section 11590, and to complete AIDS education. The petition recommended: Upon a finding of violation, absent new information, it is recommended the defendant be reassessed for motivation for continuation of treatment under Proposition 36. []  Furthermore, it is respectfully requested that probation be revoked and a bench warrant be issued if the defendant is not present in court.

On October 18, 2006, the trial court held a hearing on the petition. Defendant, represented by counsel, admitted its allegations. The court revoked and reinstated probation, then set the matter for further review on December 20, 2006, and advised defendant that he was to appear at that time in the same department.

On December 4, 2006, the Stanislaus County Probation Department filed a new petition, directed to defendant at an address in Valley Springs, California.^[1] The petition alleged that defendant had violated three conditions of probation: to complete substance abuse treatment, to register pursuant to Health and Safety Code section 11590, and to complete AIDS education. The petition noted that this would be defendants second violation of probation under the Act and made the same recommendations as the prior petition. It directed him to appear in Department 10 of the Stanislaus County Superior Court on December 20, 2006.

On December 20, 2006, defendant appeared and admitted the allegations of the petition. The trial court revoked and reinstated defendants probation, setting a new review date of February 21, 2007.^[2]

On January 31, 2007, the case was transferred to Calaveras County. However, the Calaveras County Superior Court did not receive defendants case file until March 16, 2007.

On February 21, 2007, defendant appeared in Calaveras County Superior Court, represented by counsel. The trial court found that defendant was presently in compliance, but still needed to complete AIDS education. The court notified him that his probation completion date would be December 26, 2007.

On April 9, 2007, the Calaveras County Probation Department filed a petition to revoke defendants probation, alleging that defendant had drug-tested positive for marijuana on February 1, 2007, and had failed to report for drug testing on February 12, February 20, and March 19, 2007. The petition also alleged that defendant had admitted two previous probation violations, the first on October 16, 2006, and the second on December 20, 2006. The petition recommended that defendants probation be terminated and the matter be set for sentencing.

After several continuances, on May 25, 2007, the trial court held a continued arraignment/pretrial hearing on the petition. Defendant claimed he had not admitted two prior violations, but had simply failed to appear in court at the hearing on the second petition. (See fn. 2, ante.) The court set a formal hearing date of June 5, 2007. (Ibid.)

Following further continuances, the formal hearing on the third petition occurred on July 17, 2007.^[3] Defendant admitted the allegations of this petition, without renewing his previous claim that he had not admitted those of the prior petition. The trial court set sentencing for August 20, 2007.

The probation departments sentencing report, filed August 13, 2007, alleged that defendant had admitted three violations of probation. Nothing in the report, including defendants attached written statement, suggests that he still denied having admitted the allegations of the second petition. The report recommended terminating defendants Proposition 36 probation and imposing the upper term of three years. (It also recommended in the alternative, however, that the trial court grant standard probation, even though defendants prior felony convictions made him presumptively ineligible and there were no facts bringing the matter within the unusual case exception.)

At the sentencing hearing on August 20, 2007, new counsel appeared for defendant. Asked if he had any changes to make to the sentencing report, counsel said, No, Your Honor. Granted his right of allocution, defendant also did not offer any corrections to the sentencing report.

Finding that there were no circumstances which would make this an unusual case allowing for standard probation despite defendants prior felony convictions, and that aggravating factors outweighed mitigating factors, the trial court imposed the upper term of three years in state prison.

DISCUSSION

I

Defendant contends that the revocation of his probation was premature because the state did not file three petitions moving to revoke probation, as required by the Act, but only one. We disagree.

Generally, a defendant who receives probation under the Act can . . . have that probation revoked [only] in accordance with the terms of the statutory scheme. [Citation.] Only when there is an established third drug-related violation under the Act, does the court regain[] its discretion to impose jail or prison time. [Citation.] [Citation.] (People v. Tanner (2005) 129 Cal.App.4th 223, 234 (Tanner).) This means, among other things, that the state must file three petitions to revoke probation based on drug-related violations of probation conditions, and these allegations must be proved or admitted. ( 1210.1, subd. (f)(3)(A)-(F).)

Defendant asserts that only the third petition filed in this case was a petition to revoke probation within the meaning of the Act, because the first two petitions said merely that if the trial court found a violation it is recommended the defendant be reassessed for motivation for continuation of treatment under Proposition 36. Defendants contention fails for several reasons.

First, defendant never complained in the trial court that the first and second petitions did not give him proper notice of possible probation revocation. If he had done so, the issue could have been litigated and resolved there. Defendant may not raise this legal theory for the first time on appeal. Therefore, defendants contention is forfeited. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.)^[4]

Second, defendant fails to cite authority holding that a petition to revoke probation under the Act is invalid for lack of notice unless it uses some particular verbal formula. We need not consider a legal proposition asserted without authority. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)

Third, when defendant entered his plea and received probation under the Act, his counsel stated on the record that he had advised defendant of all the consequences of the plea, and defendant stated on the record that he understood them. We presume that this meant he understood that his probation might be revoked after the filing of a petition, however worded, alleging a violation. Furthermore, defendant continued to be represented by counsel at all times; absent anything in the record showing otherwise, we presume counsel advised him specifically on the consequences of true findings on the first two petitions.

Fourth, even if defendant had been confused about what the first petition meant (which the record does not show), this confusion could not have persisted once he admitted the petitions allegations and the trial court revoked his probation.

For all these reasons, we conclude that defendant has failed to show the petitions filed here were legally insufficient.

II

Defendant also contends that his probation was revoked prematurely because the Act requires three hearings on petitions to revoke probation and there was only one qualifying noticed hearing. We reject both of defendants premises.

So far as defendant contends that he did not receive sufficient qualifying noticed hearings because the state did not file sufficient valid petitions to revoke probation, we have explained in part I of the Discussion why this contention lacks merit.

So far as defendant contends that the Act requires three separate hearings on petitions to revoke probation, this court has repeatedly disagreed. (People v. Budwiser (2006) 140 Cal.App.4th 105, 109 (Budwiser); accord, People v. Hazle (2007) 157 Cal.App.4th 567, 573-574, 577 (Hazle).)^[5]

But, in any event, the record shows that three separate hearings were held to revoke defendants probation, as follows: October 18, 2006, December 20, 2006, and July 17, 2007.

Defendants contention of error is not meritorious.

DISPOSITION

The judgment (order revoking probation and imposing sentence) is affirmed.

SIMS , J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

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^[1] We take judicial notice that Valley Springs is in Calaveras County. (Evid. Code, 452, subds. (g), (h).)

^[2] When the briefing in this case was filed, the record included a minute order from the hearing date that showed this disposition. However, the reporters transcript from that hearing appeared to show that the trial court revoked defendants probation for failure to appear, without making any findings on the allegations of the petition. Defendant claimed at a later hearing that he had not appeared on that date because he had already relocated to Calaveras County by then, and the probation department and the Proposition 36 program had advised him to wait for a letter giving him guidance on what to do about the Stanislaus County hearing.

Based on the reporters transcript and his own account at the later hearing, defendant asserted that the December 20, 2006, minute order was a fabrication; he never admitted the allegations of the second petition and the trial court did not find them true; and therefore the People failed to prove three separate violations of probation as required to revoke probation permanently under Proposition 36.

The People requested an augmentation of the record to include any further reporters transcript of the December 20, 2006, hearing that might exist. That augmentation, which we received after the close of briefing, shows that the minute order was correct: defendant did appear on December 20, 2006, and admitted the allegations of the petition. Therefore, defendants argument, offered without benefit of this augmentation, is untenable.

^[3] Although the continuances were granted in part because defendant sought to retain new counsel, he had not done so as of this date.

^[4] Possibly anticipating our conclusion, defendant contends he has not waived his claim merely because he did not object to the premature revocation of his probation or the subsequent sentence to state prison. But it is not his failure to object to the outcome of the probation revocation procedure here which dooms his argument, but his failure to object to the alleged lack of notice at the earlier stages of the proceedings.

^[5]Defendant does not cite Budwiser, and although he cites Hazle on another point in his reply brief he overlooks its endorsement of Budwisers holding. To the extent that Tanner, supra, 129 Cal.App.4th 223, on which defendant relies, construes the Act differently, we have declined to follow Tanner on this point. (Hazle, supra, 127 Cal.App.4th at p. 577.) Because defendant has not given us any reason to reconsider Budwiser and Hazle, we continue to believe they were correctly decided. Therefore, we hold, as in Budwiser and Hazle, that the Act does not require three separate hearings on probation revocation petitions. Thus, even if three separate hearings had not occurred, it would not show error.